(05c) 'Unlicensed' War in Jewish Tradition

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'Unlicensed' War in Jewish Tradition: Sources,
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Stuart A. Cohen a
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‘Unlicensed’ War in Jewish Tradition:

Sources, Consequences and
Implications
STUART A. COHEN
Department of Political Studies Bar-Ilan University, Ramat Gan, Israel
ABSTRACT The prevalence of military activity in the experience of modern Israel has recently
generated several attempts to compare western teachings on warfare and its exercise with those
found in Jewish sources. The present article constitutes a contribution to that enterprise, focusing
on attitudes towards what are here termed ‘unlicensed wars’ in the overall just war tradition. The
article first defines that specific category of armed conflict, arguing that ‘unlicensed wars’ are
characterized by a failure to follow the constitutional procedures required to set the military
apparatus in motion. It then goes on to analyze specifically Jewish textual traditions relating to
the consequences of this situation. Finally, the paper discusses the broader messages conveyed by
the term ‘unlicensed war’, demonstrating how it reflects the Jewish conception of the polity as a
covenantal community.
KEY WORDS: Bible, Jewish political tradition, ius ad bellum , constitutional sanction
During the two millennia of Jewish exile and political powerlessness that
commenced in the first century ce., Jewish ethical discourse devoted very little
attention to analyses of warfare and the religious and ethical problems that it
poses. A handful of exceptions apart, such topics were marginalized in the
vast library of medieval and early modern texts that expounds the tenets of
Jewish law and transmits traditional scriptural exegesis. Today, such is no
longer the case. The prominence of armed conflict in the experience of the
modern state of Israel has prompted increasing religious interest in this area
of political action, resulting in the appearance of an entire corpus of works
devoted to its examination.
Frequently composed by rabbis themselves in possession of extensive
military service, much of the new literature in this field is concerned with the
minutiae of orthodox Jewish ritual practice. At that level, its prime purpose is
to help religious soldiers reconcile the mandates of traditional obligations
with the practical demands of modern army life. Simultaneously, however,
considerable efforts have also been invested in fresh analyses of traditional
Jewish attitudes towards more theoretical aspects of warfare. Specifically,
Correspondence Address: Stuart A. Cohen, Department of Political Studies Bar-Ilan University, Israel,
Ramat Gan, Israel 52900. Tel: 972 3 5318958. Fax: 972 3 5353307. E-mail: cohenst@mail.biu.ac.il
1502-7570 Print/1502-7589 Online/05/03000198 /16 # 2005 Taylor & Francis

DOI: 10.1080/15027570500302491
‘Unlicensed’ War in Jewish Tradition 199
scholars have begun to re-read the classic texts in the light of terms and
classificatory systems developed in other cultures, and especially in western
political and ethical thought. Thanks to the insights thus obtained, they
have been able to elicit from traditional Jewish sources layers of attitudes
towards warfare and its pursuit that had hitherto been largely submerged
from view.
Aviezer Ravitzky’s study of ‘Prohibited Wars in the Jewish Tradition’
constitutes a particularly stimulating product of that enterprise. It demon-
strates the clarity with which both philosophical and legal Jewish texts have
distinguished between ‘permissible’ and ‘prohibited’ military activities. Far
from encouraging warfare, Ravitzky argues, the Jewish tradition posits that
the prohibition on its conduct is ‘the starting point for any given discussion; it
is the given norm’ (Ravitzky 1996: 119). True, and as will be illustrated below,
the recorded criteria for differentiating between permitted and prohibited
wars are essentially sui generis to the Jewish tradition. Nevertheless, the
consequences of that distinction are easily accommodated with the western
discourse on the Just War, and hence deserve to be considered of much wider
relevance. In the last analysis, whether or not a specific war is permitted or
prohibited determines whether or not the act of killing in war is to be branded
as murder.
The present article seeks to advance Ravitzky’s analysis one stage further.
Specifically, it posits that not even the binary distinction between ‘permitted’
and ‘prohibited’ warfare does full justice to the sophistication of classic
Jewish approaches to warfare. The relevant sources and their interpretations
also allow for a third, intermediary category of military operations which is
/
here labeled ‘unlicensed’ warfare. What defines this category is not the
injustice of the cause for which the war is fought, nor even the forbidden
nature of the means employed during the course of the fighting. At issue,
rather, is a failure to follow the constitutional procedures required to set the
military apparatus in motion in the first place.
Superficially, this may appear to be little more than a technical offense, a
breach of procedural etiquette. In fact, however, more is at stake. ‘Unlicensed’
wars in the Jewish tradition, I shall argue, bear distinct affinities with what
some analysts have in our own day termed ‘virtual warfare’ (Ignatieff 2000), a
phrase coined to cover several facets of modern international conflicts, one of
which is the tendency of even the most democratic of governments to embark
upon military operations without first obtaining due parliamentary assent.
This procedural offense reflects, and sometimes generates, faults of a
substantive nature. Rules, after all, are not simply boundaries set down
/
with no other purpose than to warn potential offenders of the need to take
heed. Their content, together with the language and style in which they are
formulated, in fact reflect the values that they are designed to protect. Hence
by analyzing rules we can gain insights into values. The need for such a study
is felt to be especially acute in the contemporary State of Israel, whose
frequent need to resort to military force has generated a particularly intense
intra-rabbinic debate over the degree of sanction that Jewish traditions do,
and do not, accord to various modes of armed conflict (Cohen 2005).
200 S. A. Cohen
That context has determined the structure of the present paper. It begins
with a description of the place of ‘unlicensed wars’ within the overall
taxonomy of conflict situations found in orthodox Jewish law, known as the
halakhah. It then goes on to analyze a textual tradition relating to this
particular category of conflict. Finally, the paper discusses the broader
meanings of the message conveyed by the term ‘unlicensed war’ itself.
Traditional Jewish taxonomies of wars and their lessons

Authors of traditional Jewish texts were clearly sensitive to the fact that ‘war’
is a generic term that covers a wide variety of conflict situations. Like other
observers of military affairs, ancient and medieval Jewish authors accordingly
developed several classificatory systems, specifically designed to distinguish
one ‘war’ from another.
Of these, undoubtedly the most prominent is that which distinguishes a
milkhemet reshut (lit: a ‘discretionary’ war; a situation in which, under certain
conditions, Jewish law permits the resort to organized violence) from a
milkhemet mitzvah (a ‘commanded’ war; in which the use of force is deemed
mandatory). First made explicit in rabbinic texts dating from the third
century ce. this particular taxonomy attained the status of a template once
adopted by Maimonides (Rabbi Moses ben Maimon, 1135 1204), the author
/
of the most comprehensive and authoritative of all Jewish legal compendia,

which he entitled Mishneh Torah (‘Supplement to the Torah’). Even those
subsequent rabbinic investigations into the initiation and conduct of war that
disputed various details in Maimonides’ exegesis, nevertheless adopted as
their starting point for discussion his benchmark differentiation between
whatever state-controlled acts of violence traditional Jewish law considers to
be obligatory (mitzvah) and those for which it merely provides sanction
(reshut).
Maimonides lays out the mandatory/discretionary classification in the 14th
and final volume of his massive code, where he itemizes the rights and duties
of monarchs. Indeed, the entire section is entitled ‘Laws of Kings and their
Wars’. This scheme of things is significant, since it imbues his discussion with
a recognizably Clausewitzian gloss. Clearly, Maimonides does not consider
armed conflict to constitute an expression of a religious impulse, and hence
carefully eschews reference to ‘holy wars’ (Blidstein 1991). Rather, he regards
the resort to an organized act of force as an essentially instrumental action,
which expresses state power (Inbar 1987).
Maimonides is very clear about the relative ranking of mandatory vis-a-vis
discretionary wars. ‘The primary war which the king wages (he writes, my
emphasis) is a mandatory war . . . . Thereafter he engages in a discretionary
war.’ (Laws of Kings and their Wars, V:1). This order of priorities is easily
understood. As Maimonides points out, ‘mandatory wars’ trace their license
either to explicit biblical commands (specifically: the instructions to destroy
the seven nations that inhabited the land of Canaan in Joshua’s time; and to
wipe out the memory of Amalek [Deuteronomy 25: 19]), or to the categorical
imperative of national self-defense in Maimonides’ phrase, the duty ‘to
/
deliver Israel from an oppressor attacking them’. By contrast, ‘discretionary

wars’ reflect decidedly this-worldly motives, of which the most blatant is a
sovereign’s desire ‘to extend the borders of Israel and to enhance his (own)
greatness and prestige’. This is another way of saying that whereas mandatory
wars emanate from a Divine source and hence cannot be avoided, the
initiation of discretionary wars is dependent upon human assessments of their
necessity.
That background doubtless helps to clarify various further nuances in the
Maimonidean analysis of warfare. Unlike some of his Islamic near-
contemporaries, at no point does Maimonides employ his mandatory/
discretionary hierarchy as a base from which to extrapolate possible
differences in the relative degree of license for violence granted in each
case.1 Instead, the very first feature of that taxonomy noted in his Code is the
difference in the procedures whereby, in each category of conflict, the ius ad
bellum is validated and confirmed. Indeed, at the very crux of Maimonides’
mandatory/discretionary distinction is a difference in the control over the
executive prerogative of war-initiation and military conscription.
For a mandatory war, the king need not obtain the sanction of the court.
He may at any time go forth of his own accord and compel the people to go
with him. But in the case of a discretionary war, he may not lead forth the
people save by a decision of the court of 71 (Laws of Kings and their Wars,
V:2).
Ever since the nineteenth century, considerable quantities of ink have been
spilt in attempting to reconcile the Talmudic and Maimonidean nomenclature
(‘Sanhedrin’/‘Great Court’/‘Court of 71’) with the historical realia of ancient
Israel’s agencies of government (Rivkin 1975). In retrospect, much of the
effort seems to have been wasted. Maimonides and his traditional commen-
tators were blissfully unaware of the possible discrepancy between the
agencies that such other sources as the New Testament, Josephus and the
early rabbinic texts variously refer to as ‘the Sanhedrin’, the ‘Beth Din’ and
the ‘Boule’. As far as they were concerned, all are one and the same thing a/
supreme court-cum-council, often termed the ‘Sanhedrin’, consisting of 71

sages. The stipulation that kings cannot impose conscription and initiate
hostilities without first consulting this body suggests a constitutional system
that rests on clearly defined checks and balances. In the words of one
summary: ‘Before (discretionary wars) can be fought, the king must meet a
set of legal requirements’ (Walzer 1996: 101).
The importance of the constitutional process

Traditional Judaism is not, of course, the only culture to insist that the
legitimacy of war-initiation be made contingent on the observance of a
prescribed sequence of procedures. Ancient civilizations as varied as the
Aztecs of Mexico and the Maoris of New Zealand are known to have been
equally insistent in this regard (Hassig 1988: 145 147; Keegan 1995: 85 116).
/ /
And so too, albeit in a very different way, are contemporary democratic

states, many of which have written into their statute books requirements for
202 S. A. Cohen
governments to engage in some form of consultative process before the

country can be deemed to be in a legal state of war. The Constitution of the
United States offers a paradigmatic example. Although that document
appoints the President as Commander in Chief of the Army and Navy, and
hence the nation’s undisputed leader in war, it explicitly reserves to Congress
the power to ‘declare war’ and thereby initiate hostilities (art. 1, section 8: 11).
Moreover, the War Powers Resolution, passed by Congress over President
Nixon’s veto in 1973, specified three particular mechanisms designed to
ensure that Presidents would observe both the spirit and the letter of the
Framers’ original intent. First, ‘(t)he President in every possible instance shall
consult with Congress’ before introducing armed forces into hostilities.
Second, the President must report to Congress within 48 hours of sending the
military into combat. Third, unless explicitly excused from doing so, the
President must terminate military intervention overseas within 60 days of
reporting its occurrence to Congress.
As constitutional lawyers often point out, these stipulations have consis-
tently been ignored (Fisher 1995; Dycus 2002: 92 144). Since the end of
/
World War II, American servicemen and women have been engaged in violent
conflict in Korea, Vietnam, Haiti, Panama, Iraq (twice), Somalia, the
Balkans and Afghanistan (to name only the most prominent examples)
without Presidents calling upon Congress to fulfill the role that the framers of
the Constitution supposedly assigned to it in such situations. True, blame for
this situation does not necessarily rest exclusively on the shoulders of
Presidents. Congress too has often been reluctant to assume its responsi-
bilities; and the Supreme Court has persistently exercised deference to the
executive branch rather than challenge the President’s exercise of his war
powers. What is important, however, is that as a result of this compound of
‘executive initiative, congressional acquiescence and judicial tolerance’ (Koh
1990: 117), the formal constitutional provisions for war-making have virtually
become dead-letters. Presidents do not explicitly act against the will of
Congress; they simply do not consult with that body. Likewise, and merely by
not reporting to Congress on the initiation of hostilities, they have often
managed to by-pass the sixty-day-clock clause specified in the War Powers
Act. As one somewhat incredulous analyst notes: the authors of the Act ‘do
not seem to have contemplated what to do if the President simply refuses to
start the clock, as has uniformly been the case’ (Fisher 1995).
Common sense would seem to indicate that a President of the US who does
not follow the procedures for war-initiation set down in the Constitution
oversteps some sort of boundary. The problem, however, is to define the
precise nature of that line and the consequences of the transgression. In the
words used in 1952 by Justice J. Jackson of the United States Supreme Court,
adjudicating Youngstown Sheet & Tube Co. v. Sawyer, ‘When the President
acts in absence of either a congressional grant or denial of authority’, he
enters ‘a zone of (constitutional) twilight’ (Henkin 1990: 17 43). His /
behavior certainly contravenes the spirit of the law, but is it also unlawful?
Specifically, could a President be impeached for failing to comply with the
War Powers Act? Or could he be accused of ordering the troops under his
command to commit murder by engaging in ‘unconstitutional’ war?

Alternatively, would the courts be likely to uphold a serviceman’s plea of
conscientious objection based on the impropriety of the procedures whereby
conflict was initiated?
‘Unlicensed’ wars in Jewish sources

Traditional Judaism’s insistence that monarchs must obtain the sanction of
the Sanhedrin before embarking on a ‘discretionary war’ raises precisely the
same sort of queries. Clearly, any monarch who sought to initiate a conflict of
that sort in direct contradiction to the Sanhedrin’s advice would run the risk
of being branded an outright violator of halakhah. But supposing he was to
take the far less confrontational step of simply not consulting the Sanhedrin
in the first place? Would he then, too, be considered a sinful king, to whose
call to arms his subjects might legitimately turn a deaf ear? Such questions are
by no means of purely theoretical interest. They can be and are also
/ /
posed with practical reference to the ius ad bellum in the contemporary State
of Israel, whose elected government religious Zionists consider to have
inherited the sovereign powers once wielded by ancient Israel’s kings. Simply
put: could the government of Israel be accused of transgressing religious law
were it to embark on a ‘discretionary’ campaign without first consulting
whatever body might be considered the present-day equivalent of a
Sanhedrin?
When seeking for answers to such questions, rabbinic authors con- /
temporary as well as classic invariably observe a set of clearly defined

/
interpretational conventions. Unlike the ancient and medieval exponents of

western political thought, orthodox Jewish thinkers very rarely present
explicitly architectured statements of political philosophy, in which they
extrapolate constitutional doctrines, step by step, from fundamental postu-
lates concerning the purposes of human society. Rather, they favor a far more
exegetical style, which emphasizes the primacy of the books of the Bible and
its commentaries as the revealed word of God and hence as the source of all
human wisdom. With regards to political issues, especially, their scholastic
preference has always been to search for the lessons that might be distilled
from the incidents related in the Bible and its rabbinic elaborations,
generically known as Midrash.
The risk in that methodology, of course, is that the available sources might
simply not contain appropriate precedents for a discussion of the case to
hand. But such does not seem to have been the outcome of an exploration
into the halakhic status of a discretionary conflict initiated by a monarch
without due consultation with the Sanhedrin. At least one of the early
commentaries upon which mainstream rabbinic exegesis relies could be
shown to have discussed precisely such a scenario. Even more interestingly,
this text explicitly names names, and reports that the culprit who thus
engaged in what is here termed ‘unlicensed’ warfare was none other than
King David, ancient Israel’s most illustrious monarch and the fount of
Judaism’s messianic legacy.
204 S. A. Cohen
The basic text of relevance in this context is the 51st paragraph (piska) of
Sifrei, a rabbinic commentary on the book of Deuteronomy, compiled some
time during the fourth century ce. Glossing Deuteronomy 11: 24 (‘Every place
whereon the soles of your feet shall tread shall be yours: from the wilderness
and Lebanon, from the river, the river Euphrates, even unto the uttermost sea
shall your coast be’), Sifrei understands that source to have prescribed the
sequence for all future biblical military campaigns. Specifically, the text is
though to have forbidden the Children of Israel to undertake military
adventures beyond the designated boundaries of the Promised Land before
establishing control over all the territories within those borders. According to
Sifrei, the juxtaposition of that injunction with the references to David’s
conquests of the areas of Syria that the Bible terms ‘Aram-Naharaim’, and
‘Aram-Zobah’ (II Sam. 8: 3; I Chron. 19: 6ff; and Psalm 60: 1 2) reveals that:
/
David disobeyed the Torah (Divine Law), for the Torah said: ‘After you have conquered
the Land of Israel, you may conquer places outside the Land’. But he did not do so.
Rather, he . . . conquered Aram Naharaim and Aram-Zobah without first dispossessing
the Jebusites who still controlled areas adjacent to Jerusalem. God said to David: ‘Places
near to your own palace you did not conquer. How could you go and conquer Aram
Naharaim and Aram-Zobah?’(Hammer 1986: 108)
Did King David take this sinful step unilaterally? Or, prior to doing so, did he
consult with a body equivalent in his own day to the Sanhedrin? Since Sifrei
is entirely silent on this point, it was left to subsequent rabbinic exegetes to fill
in the details. And their reconstructions of the incident exhibit considerable
variations.
One pole of opinion is posited by Maimonides, who adheres with absolute
consistency to the rules of war-initiation formulated in his own Code. He
starts with the assumption that David’s Syrian wars must be classified as
‘discretionary’, since they were neither explicitly commanded by God nor
fought in self-defense. That being so, it is inconceivable that so saintly a figure
could have done anything but follow the procedural rules of consultation
required in all such cases. Hence, when presenting his own reconstruction of
the events described in Sifrei, Maimonides takes the license to embellish that
source. Specifically, he states that, when conquering Syria, David must have
been ‘acting with the consent of the High Court’ (Maimonides, Mishneh
Torah, Book of Agriculture, Laws of Heave Offering, I: 3).
Notwithstanding Maimonides’ towering status in the Jewish legal tradition,
this version of events was not adopted unanimously. On the contrary,
the Maimonidean narrative was explicitly challenged by several other
rabbinic commentators, who interpreted the Sifrei text as evidence that
David clearly did not take counsel with the Sanhedrin or some equivalent
body. Typical of this school of thought is Nachmanides (R. Nachman ben
Mosheh, 1194 1270), one of the most renowned of all Spanish-Jewish
/
biblical commentators, who in his own exegesis on Deuteronomy 11: 24

displays no inhibitions whatsoever about calling a spade a spade. Talmudic
literature, he points out, specifically designates the territory David acquired in
Syria as nothing more than a ‘private’ conquest. ‘The reason is that David
conquered it of his . . . own will . . . without consulting the Sanhedrin’

(emphasis added. Chavel 1976: 138).
Consequences
Jewish legal conventions generally demand that individual punishments be
commensurate with specific transgressions. Hence, it is not surprising to find
that those rabbinic authors who considered David to have indeed committed
a procedural offense invested considerable energy in exploring the prices that
culprits would have to pay for embarking on an ‘unlicensed war’, or
participating in a military campaign thus termed. Specifically, rabbinic
analysis distinguished between two possible objects of judicial retribution:
the monarch who neglects to consult the Sanhedrin, and the soldiers who
nevertheless respond to a royal summons to arms.
The expectation that offending monarchs should be required to pay an
individual price for their transgression is highly understandable. After all,
sovereigns are not only the prime instigators of ‘discretionary wars’; if
campaigns thus designated are successful, they are also the prime benefici-
aries of victory. (In Maimonides’ formulation: ‘All the land [the king]
conquers belongs to him. He may give thereof to his servants and warriors
as much as he wishes; he may keep thereof to himself as much as he wishes. In
all these matters he is the final arbiter’ [Laws of Kings and their Wars IV: 10]).
Given that background, it is only reasonable to expect that the punishment
imposed on a king who embarks on an ‘unlicensed’ campaign would also be
highly personal in nature. That would be the only way to convey the notion
that monarchs desirous of engaging in discretionary wars are personally
commanded to abide by the rules that require prior consultation with the
Sanhedrin.
Occasionally hinted at in random snatches of medieval rabbinic exegesis,
that argument was most coherently articulated in the last third of the
twentieth century by Rabbi Shlomo Goren (1917 1994). Both the timing and
/
the authorship were significant. Rabbi Goren was the first, and the most
influential, of the chief chaplains of the Israel Defense Force (IDF), the first
sovereign Jewish army to be established since the defeat of the Bar Kochba
revolt against Rome in the second century. In that capacity, Rabbi Goren
played a leading role in the contemporary effort to find within traditional
Jewish law solutions to the innumerable challenges that modern military
service presents to orthodox ritual practice and ethical thought. The
comparative dearth of materials relating to military matters and warfare in
the great medieval codes of Jewish law (Maimonides being the exception that
proves the rule) virtually compelled Rabbi Goren and his colleagues to go
back to the biblical narratives for information and possible inspiration. And
it was in so doing that he too took a special interest in their reports of King
David’s Syrian campaigns (Goren 1994: 18 28). /
In the controversy between Maimonides and Nachmanides as to the

process of war-initiation in this case, Goren comes down firmly on the side of
the latter. Before embarking on war in Syria, he concludes, King David
206 S. A. Cohen
apparently did not consult with a Sanhedrin or its equivalent. Considering

the number of earlier rabbinic authorities who had taken the same line, this is
hardly an original argument. But when he then proceeds to analyze the
consequences of David’s offence, Goren does break somewhat new ground.
By ingeniously associating this episode with the conversation between King
David and the prophet Nathan recorded in II Samuel 7: 4 9, Goren deduces
/
that the Syrian campaign was ultimately responsible for the fact that David
was denied his wish to build the Temple. Moreover, Goren argues, this
particular punishment certainly fitted the crime. According to one reading of
Psalm 60, he shows, the campaigns in Syria were not only ‘unlicensed’ (since
they did not receive the Sanhedrin’s approval), but were also especially costly
in terms of Israelite casualties. A monarch who thus spilt so much blood, and
without due authority to boot, could not possibly be permitted to build a
shrine designed to convey the message of Divine peace.
Significantly, Goren does not seem prepared to take that argument one
stage further and hold King David personally accountable for the large
numbers of lives lost in his ‘unlicensed’ campaign (12,000 by one audit).
Neither does he suggest that the entire venture deserves to be categorized as
murderous. Even in his reading, ‘unlicensed’ war remains an intermediate
category. On the lines suggested by Justice Jackson, it seems to fall in the
twilight zone between those campaigns that are sanctioned (‘discretionary’
and ‘mandatory’ wars) and those that are not (‘forbidden’ wars).
This status would seem to be further confirmed when attention with respect
to the consequences of ‘unlicensed wars’ is shifted from the monarch to his
soldiers. Here, too, rabbinic authorities seem deliberately to steer a middle
course. On the one hand, they re-affirm the duty of allegiance and obedience
incumbent on all the king’s subjects. Hence, after weighing all the pros and
cons at some length, one recent pioneering study concluded that not even a
failure on the part of the king ( the government of the modern State of
/
Israel) to consult with the Sanhedrin before embarking on a discretionary war

would automatically entitle individual soldiers to refuse to obey summonses
to military service in the IDF (Yisraeli 1961: 147 154). On the other hand,
/
however, the same sources do not absolve participants in ‘unlicensed’ military

ventures of all personal responsibility for their actions. On the contrary, they
often explicitly deny them some of the prerogatives and dispensations that
soldiers engaged in properly sanctioned wars conventionally enjoy.
This last points warrants some elaboration. As a rule, traditional Jewish
law expressly permits soldiers engaged in warfare to undertake several actions
that in other circumstances halakhah absolutely forbids. The range extends
from intentionally killing identified enemies, on the one hand, to despoiling
the possessions of the vanquished, on the other. What removes from these
actions the stigmas of murder and theft, respectively, and hence grants them
legality, is the particular situational context in which they are carried out.
War, to adapt Clausewitz’s famous dictum, thus seems to be granted its own
(halakhic) ‘grammar’ and ‘space’ and hence to be treated as an
/
autonomous sphere of human activity. As collated by rabbinic scholars

soon after the establishment of the state of Israel (e.g., Waldenberg 1953 II:
237 265), the evidence for this position is ample. For instance, the Bible itself
/
explicitly permits thereby seeking to control in wartime certain sexual

/ /
unions that are otherwise strictly forbidden (the ‘[captive] woman of beautiful
countenance’, see Deuteronomy 20: 10 15). Early rabbinic literature (Mis-
/
hnah, Eruvin 1: 10) likewise placed some ritual injunctions into abeyance
during times of military activity. Above all, it defies logic to imagine that
warfare could be conducted without the commandment to preserve life
(Leviticus 18: 5) being inevitably transgressed.
For very many years, no rabbinic scholar seems to have asked whether all
such licenses to act in ways otherwise forbidden would continue to hold good
should the troops be engaged in an ‘unlicensed’ war, for whose initiation the
king had not obtained the Sanhedrin’s consent. To the best of my knowledge,
the first to do so (and even then only obliquely) was Rabbi Avraham Dubar
Kahana Shapiro, a Lithuanian talmudist of considerable repute who perished
in the Kovno ghetto in 1943. Shapiro came to this subject during the course of
an extended enquiry into the legal status of property acquired as a result of
hostilities that he published in his book of essays entitled Devar Avraham
(Warsaw, 1905; reprinted in Jerusalem, 1999). Much of this analysis focuses
on wars waged by and amongst gentiles. For purposes of comparison,
however, Shapiro does also relate to hypothetical cases of warfare initiated by
Jews, and it is within the context of one such discussion that he makes the
following comment (p. 165):
The (law of the) ‘beautiful captive’ (Deuteronomy 20: 10 15) is not /
something that is permitted to Jews and forbidden to gentiles. For (a woman

in this category) is also permitted to a Jew only in (a situation of) a licensed
war (milkhamah muteret). But in a war that is not licensed (milkhamah she-
ainah muteret) we have no basis to rule that she might be permitted. And I am
inclined to the view that were (Jews) to embark on a discretionary war
(milkhemet reshut) without the permission of the Sanhedrin of 71, the law of
the beautiful captive would not apply.
The inferences that can be drawn from this comment extend far beyond its
immediate context. What it implies is that, in the last analysis, all the various
licenses for extraordinary action that the Jewish tradition issues to soldiers
are only valid when the hostilities in question satisfy the criteria laid down in
that tradition for a specific armed conflict to be termed a ‘war’. That
definitional threshold surely cannot be considered crossed until the polity has
gone through all of the required procedural motions, of which in the case of
/
a ‘discretionary’ action launched by a sovereign Jewish government /
consultation with the Sanhedrin is undoubtedly one of the most prominent.

Absent fulfillment of that provision, fighting must be considered to take place
in a jurisdictional limbo, characterized by a blurring of the categories
conventionally employed to differentiate a state of war from a state of peace.
This could have very serious consequences indeed. Soldiers, it has been found,
are most likely to respect the ius in bello (as defined, for instance, by the
Geneva Convention) when the conflict situations in which they operate are
clearly defined. In ‘fuzzy’ circumstances they frequently find it difficult to do
so (Kellog 1997).
208 S. A. Cohen
Implications: On the role and functions of the Sanhedrin

The significance of the identification of ‘unlicensed’ wars as a distinct
category of conflict is not limited to the legal consequences of that status.
From the perspective of just war theory, even more interesting are its broader
political and governmental implications. Indeed, basic to the argument of this
paper is that analysis of traditional Jewish discussions of the conditions
required for authorized war-initiation does not merely further our under-
standing of traditional Judaism’s attitude towards the propriety of armed
conflict and its pursuit. In a far more fundamental sense, that discourse can
also be seen to cast considerable light on what the sources have to say about
the public accountability of the human agencies to which the classic texts of
the Jewish political tradition entrust the government of the polity and the
formulation of its security policies.
Any attempt to uncover that dimension of the possible implications of
‘unlicensed’ wars must necessarily focus on a review of the role allotted to the
body generally termed ‘the Sanhedrin’ in the decision-making apparatus.
Maimonides, it will be recalled, posited the need for consultation with this
institution as the primary procedural distinction of a discretionary war and,
/
hence, as the principal difference between that class of conflict and a

mandatory campaign. Subsequent rabbinic authorities, although all claiming
to be Maimonides’ students in one way or another, have often considerably
sharpened that position and made explicit teachings that the great master left
unsaid. As a result, they have made the need for the Sanhedrin’s validation in
the case of a discretionary war far more emphatic. Indeed, some argue that,
given the absence of any such agency in the contemporary world of Jewish
politics, no war of that name can now be legally undertaken (Waldenberg
1953 II: 235 236).
/
The latter position cannot be entirely attributed to a fundamentalist fidelity

to the literal wording of ancient texts. After all, the stringent insistence that,
even today, only a body by the name of a ‘Sanhedrin’ can authorize a
discretionary war has not been matched by an equally adamant demand that
none other than a ‘king’ can initiate such a campaign. On the contrary, basing
themselves on the eminently respectable judgments of medieval exegetes,
many modern authorities have experienced little difficulty in showing that a
‘king’ need not always be a King. Nachmanides, for one, had specifically
conferred royal prerogatives on any sovereign authority (‘the king, the judge,
or whosoever exercises jurisdiction over the people’) and in so doing provided
a republican opening that some of the greatest names in the religious-Zionist
pantheon of the early and mid-twentieth century were quick to exploit. Thus,
according to the latter school of thought, the contemporary State of Israel
need experience no halakhic qualms whatsoever when going to war in self-
defense (campaigns that ipso facto qualify as ‘mandatory’ wars). Quite
simply, the country’s Government has inherited the executive right to
independent war-initiation that was originally invested in ancient Israel’s
kings.2 Equally straightforward, however, is the corollary of that position: it is
not the absence of a monarch (however designated) that rules out the possible
initiation in our own day of a discretionary war. As far as Jewish tradition is

concerned, the principal impediment to the initiation of a conflict of that
name lies in the absence of a Sanhedrin a council of recognized rabbinic
/
sages whose collective word is binding on all Israel.

Over the centuries, successive generations of rabbinic commentators have
invested considerable energy in attempting to explain the importance thus
attached to the presence of a Sanhedrin in the procedure whereby discre-
tionary wars need to be initiated. Significantly, their conclusions have been far
from unanimous. In retrospect, indeed, it is possible to identify two distinct
clusters of approaches to this question. Whilst one focuses on what I shall term
the ‘utilitarian’ function of the Sanhedrin’s advice, the other stresses the
‘republican’ image conveyed by the very process of consultation. Basic to the
position adopted by what is here termed the utilitarian approach is the view of
the Sanhedrin as an essentially advisory assembly. As such, its function is not
to formally ‘sanction’ a monarch’s decision to go to war at all. (Indeed, in some
views, the Sanhedrin possesses no veto power over such a decision; and any
attempt on its part to disallow a discretionary war would in fact constitute an
infringement of a prerogative exclusive to royalty.)3 From a utilitarian
perspective, the role of the Sanhedrin is much more restricted. Its members
would be required only to supply the sovereign executive power with whatever
counsel he may require. Thus, in one recent re-formulation of medieval
opinion: ‘The Sanhedrin is charged with assessing the military, political and
economic realia and determining whether a proposed war is indeed necessary
and whether it will be successful in achieving its objectives’ (Bleich 1983: 25).
Midrashic sources add one further item to this list of utilitarian reasons for
consultation with the Sanhedrin. The process can also supply the monarch
with a legal pretext for his ‘discretionary’ initiative, and thereby endow it with
a degree of legitimacy that campaigns thus designated might otherwise lack.
According to one version of an ancient legend, preserved in paragraph 1: 3 of
a fifth-century collection known as Midrash Tanhuma to Deuteronomy,
David’s Syrian wars are again said to provide a case in point:
When David sent his commander Joab to fight in Aram-Naharayim
(presumably, without first consulting the Sanhedrin), the enemy came out
toward him. They said: ‘You are one of the children of Jacob, but we are from
the children of Laban. Now here is a copy of the agreement signed by our
forefathers who each promised [see Gen. 31: 52]: ‘I will not pass beyond this
mound and pillar towards you with evil intent’’. Joab reported back to David
and asked: ‘What do you say to that?’ . . . . David immediately convened the
Sanhedrin, which ruled: ‘What the enemy says is true, but it was they who
broke the agreement between our forefathers first (there here follows a
lengthy historical digression)’. With this judgment in hand, David immedi-
ately gave Joab orders to attack.4
Proponents of what I here term, the republican interpretation of the role
allotted to the Sanhedrin in a discretionary war, certainly appreciate the
pragmatic benefits that can thus be derived from consultation with a body of
that name. At its most straight-forward, respect for that process provides the
monarch with an assurance that the body politic supports the venture on
210 S. A. Cohen
which he wishes to embark, and will therefore provide him with the human
and material resources required for its initiation (Inbar 1987). The distinction
of the republican perspective, however, lies in that it adds a further dimension
to the entire discourse. Primarily, this is because it views the Sanhedrin as not
just an advisory council but also indeed, perhaps more so a representative
/ /
body. Although certainly nothing like a democratically elected parliament (an

agency that Maimonides, for one, never envisioned [Blidstein 1983: 58 61]),/
its members function as spokespersons for the wider Congregation of Israel

and as communal watchdogs as far as the preservation of constitutional
proprieties are concerned.
Traces of that status are scattered throughout the rabbinic corpus. Indeed,
the high profile allotted to the Sanhedrin in the procedures for the initiation
of a discretionary war is not at all exceptional. As both the Mishnah and the
Talmud (tractate Sanhedrin chap. 1) make clear, the Jewish political tradition
allots the same institution a similarly prominent role at other moments of
supreme public importance: the enthronement of new royal dynasty, the
appointment of a new High Priest, and the extension of either the city limits
of Jerusalem or the boundaries of the Temple precincts. In each case, the
Sanhedrin functions as the constitutional successor to the edah (lit:
‘Congregation’) of Biblical depiction (Elazar & Cohen 1985). In the
picturesque depiction of one classic text, the Sanhedrin is in fact ‘the eyes
of the Edah’ (Genesis Rabbah 63), and, by extension, acts as a barometer of
public opinion.
Thus seen, a monarch’s failure to consult with the Sanhedrin before
embarking on a discretionary war constitutes far more than a mere breach of
protocol. At root, ‘unlicensed wars’ also conflict with the consensual and
covenantal thrust that the late Daniel Elazar identified as the very base of the
entire Jewish political tradition (Elazar 1997: 9 45). That background
/
explains the critical importance attached to the ever-sensitive issue of the

legality of conscription where such wars are concerned. True, a royal
summons to military service is, in Jewish law, almost always considered
binding even when issued unilaterally (Yisraeli 1961). In the last analysis,
/
however, what gives draft notices their moral legitimacy is the fact that prior
discussion of their distribution has taken place in the body best placed to
reflect the feelings of the soldiers who will eventually receive them.
‘Unlicensed’ wars, which ipso facto fail to observe that convention, deserve
to be considered fundamental violations of the Divinely ordained fabric of
relations that is supposed to exist between rulers and their subjects.
As is often the case, Rabbi Shlomo Ben Yitzchak (known in rabbinic
literature as ‘Rashi’, 1040 1105), captures this message perfectly in one of
/
those pithy statements that characterize his magisterial commentary to the

Babylonian Talmud. In this case, of particular interest is his annotation to the
Talmudic statement ‘and the Sanhedrin is consulted (in cases of discretionary
wars)’ (TB Berakhot, folio 3b), which reads: ‘their permission is sought so
that they might pray for the troops’. Frequently subjected to the scrutiny
of rabbinic forensic analysis, this opaque comment cries out for elucidation.
(If the prayers of sages do indeed constitute a strategic asset, why should
Rashi think that they are drafted into service only in the case of a
discretionary war? Why not in mandatory wars too?). As a reflection of
political theory, however, Rashi’s remark is in fact exquisite in its clarity and
forcefulness. What it conveys is the message that the Sanhedrin in addition
/
to being an aristocracy of knowledge and supreme religious court also acts

/
as the forum that gives expression to the notion of the collectivity as a

community of believers. Even actions designed to serve the blatantly personal
and this-worldly interests of the monarch must be preceded by a process that
articulates the Sanhedrin’s status as (in the words of one recent assessment)
‘the Community Conscience’ the physical embodiment of what Socrates
/
called ‘the conscience of the laws’ (Lamm 1978: 238).

Therein, too, lies the significance of the infringement that is committed
when monarchs/governments fail to follow due procedure, and simply by-pass
the Sanhedrin on their path to a discretionary war. The fact that they thereby
avoid receiving the Sanhedrin’s assent to the forthcoming campaign is really a
secondary consideration certainly according to the rabbinic views that in
/
any case deny that body a veto power over the royal prerogative to go to war
(see above Note 3). Much more important than authorization, it seems, is
consultation. In this context, the American parallel again offers instructive
lessons. There too it has been suggested that, in the last analysis, Congres-
sional assent is far less significant than is Congressional awareness. Since war
is a matter likely to affect the entire nation, the entire nation by way of its
/
delegates and representatives is entitled to be fully informed of the

/
executive’s intent. What is more, that right is as much ethical as legal, and
perhaps even more so (Ely 1993).
Conclusion
Noting the delicate status of the ‘discretionary war’ in traditional rabbinic
law, Michael Walzer has counseled us ‘to take an interest, as the rabbis did,
in the complexities of the decision-making process’ (Walzer 1996: 112). This
article has sought to implement that advice and to draw attention to one of
the messages that lie behind the complexities themselves. The procedural rules
laid down in Jewish teachings for war-initiation allowed of several possibi-
lities, of which ‘unlicensed’ wars was certainly one. The neglect of this
category in contemporary reconstructions of traditional rabbinic taxonomies
of wars, we have argued, is to be regretted. An analysis of ‘unlicensed’ wars
(as understood by canonical Jewish texts) promises both to underscore the
sophistication of the rabbinic understanding of political maneuver and to
emphasize the importance that the formative texts of the Jewish political
tradition attached to notion of Israel as a covenantal community.
Acknowledgements
Research for this paper was supported by the Israel Science Foundation
(grant no. 157/04). Thanks are also due for comments received from: Amichai
212 S. A. Cohen
Cohen, Avner Cohen, Moshe Hellinger, Aaron Kirschenbaum, Michael

Walzer and George R. Wilkes.
Notes
1
Compare El Fadl (1999), Kelsay (2003) and Knapp (2003).
2
This view is generally attributed to the school of thought initiated by Rabbi Abraham Isaac Kook (1865 /
1935). For an introduction to his brand of ‘religious Zionism’, see Shimoni (1995).
3
‘(The decision to launch hostilities) is entirely dependent on the wish of the king. The Sanhedrin is
consulted and asked to agree / but they have to agree (my emphasis)’. R. Naftali Zvi Hirsh Berlin (the
‘Netziv’, 1817 /1893), Meromie Sadeh to T.B. Sanhedrin 20b.
4
A slightly different version of the same incident is found in Paragr. 74:15 of the 4th Century Midrash
Rabbah on Genesis, (translated by H. Freedman [London, The Soncino Press, 1939], pp. 686 /7). The
entire exchange calls to mind that between the King and the Archbishop of Canterbury in
Shakespeare’s Henry V, Act 1, Scene 2.
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Biography
Stuart Cohen studied diplomatic history at Oxford, where he received his
doctorate in 1972. He has taught in the departments of History and of
Political Studies at Bar-Ilan University in Israel for the past 30 years. He has
also held brief positions at Harvard University and the University of Cape
Town. His fields of specialization include: the study of the Jewish political
tradition; Zionist history; and military societal relations in Israel. His
/
previous publications include: The Three Crowns: Early Rabbinic Political

Thought (Cambridge, 1992), The Scroll or the Sword? Religion and Military
Service in Israel (London, 1997) and Democratic Societies and their Armed
Forces towards the 21st Century (London, 1999).

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Vol. 4, No. 3, 198 213, 2005

‘Unlicensed’ War in Jewish Tradition:

1502-7570 Print/1502-7589 Online/05/03000198 /16 # 2005 Taylor & Francis

Traditional Jewish taxonomies of wars and their lessons

of the most comprehensive and authoritative of all Jewish legal compendia,

deliver Israel from an oppressor attacking them’. By contrast, ‘discretionary

supreme court-cum-council, often termed the ‘Sanhedrin’, consisting of 71

The importance of the constitutional process

And so too, albeit in a very different way, are contemporary democratic

governments to engage in some form of consultative process before the

command to commit murder by engaging in ‘unconstitutional’ war?

‘Unlicensed’ wars in Jewish sources

temporary as well as classic invariably observe a set of clearly defined

interpretational conventions. Unlike the ancient and medieval exponents of

biblical commentators, who in his own exegesis on Deuteronomy 11: 24

conquered it of his . . . own will . . . without consulting the Sanhedrin’

In the controversy between Maimonides and Nachmanides as to the

apparently did not consult with a Sanhedrin or its equivalent. Considering

Israel) to consult with the Sanhedrin before embarking on a discretionary war

however, the same sources do not absolve participants in ‘unlicensed’ military

autonomous sphere of human activity. As collated by rabbinic scholars

explicitly permits thereby seeking to control in wartime certain sexual

something that is permitted to Jews and forbidden to gentiles. For (a woman

a ‘discretionary’ action launched by a sovereign Jewish government /

consultation with the Sanhedrin is undoubtedly one of the most prominent.

Implications: On the role and functions of the Sanhedrin

hence, as the principal difference between that class of conflict and a

The latter position cannot be entirely attributed to a fundamentalist fidelity

initiation in our own day of a discretionary war. As far as Jewish tradition is

sages whose collective word is binding on all Israel.

body. Although certainly nothing like a democratically elected parliament (an

its members function as spokespersons for the wider Congregation of Israel

explains the critical importance attached to the ever-sensitive issue of the

those pithy statements that characterize his magisterial commentary to the

to being an aristocracy of knowledge and supreme religious court also acts

as the forum that gives expression to the notion of the collectivity as a

called ‘the conscience of the laws’ (Lamm 1978: 238).

delegates and representatives is entitled to be fully informed of the

Cohen, Avner Cohen, Moshe Hellinger, Aaron Kirschenbaum, Michael

previous publications include: The Three Crowns: Early Rabbinic Political

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